The business behind the show

Broadcasters take on FCC indecency rules in Supreme Court showdown

January 4, 2012 | 3:11
pm

The broadcast industry will try next week to persuade the Supreme Court to tell the government to back off when it comes to regulating content.

On Tuesday, the high court will hear arguments from News Corp.'s Fox and Walt Disney Co.'s ABC that the Federal Communications Commission's rules regarding indecent programming and the way they are enforced by the agency are both vague and unconstitutional.

The Fox and ABC cases have been working their way through the courts for years. In indecency cases, the FCC typically fines the TV stations that use the public airwaves to carry the networks' programming. However, many stations are owned by networks, which usually fight the fines on behalf of their affiliates.

ABC's case stems from a $1.4-million fine the FCC levied on the network and some of its affiliates in 2008 for a 2003 episode of the police drama "NYPD Blue," in which the buttocks of actress Charlotte Ross were visible to viewers. ABC fought the fine and, last January, the U.S. 2nd Circuit Court of Appeals in New York threw it out.

Fox's fight grew out of incidents in 2002 and 2003, when Cher and Nicole Richie cursed during live awards shows. The curses were not bleeped. In 2004 the FCC ruled that Fox could be fined for indecency violations in cases when a vulgarity was broadcast during a live program. While the FCC never followed through with a fine, Fox has fought that ruling and -- as was the case with ABC -- the 2nd Circuit sided with the network.

The FCC then appealed both rulings to the Supreme Court, which tied the cases together. NBC and CBS are not parties to the case but are interveners and supporting Fox and ABC.

Arguing for ABC is Seth Waxman, a partner at WilmerHale and a former solicitor general during the Clinton administration. Fox's lawyer is Sidley & Austin's Carter Phillips. Both have argued before the Supreme Court dozens of times.

Carrying the ball for the FCC will be Solicitor General Don Verrilli. Interestingly, Verrilli has argued cases for the TV industry before the Supreme Court when he was in private practice and has a strong background in telecommunications and media law.

The networks ideally would like to see the indecency rules tossed. A more realistic scenario, according to one network executive watching the case, is that the FCC's methods of enforcing the rules will be called into question. If that happens, the likely result would be that the FCC would be asked to clarify its rules and be more transparent in how it enforces them.

That would be seen as a huge victory for the broadcasters because it would make it more difficult for the FCC to go after TV stations for airing racy material. Indecency rules do not apply to cable networks such as HBO or FX because they do not use the public airwaves to broadcast content.